Mickey Minor v. The Warden, State Prison (2012)

MEMORANDUM OF DECISION

MEMORANDUM OF DECISION

The court is prepared to rule and for the record between the last time we were here and now, and including during the break today, the court did take the time to—frankly, the only real exhibit, substantial exhibit, which was the trial transcript testimony and the other things on the CD, but did review those and then did re-review portions of that during the break today;  obviously, has considered the testimony of all the witnesses and court has copious notes on all that testimony.   And really what we deal with here is, I mean this an ineffectiveness claim, and again, the seminal case is Strickland versus Washington, where the petitioner is required to prove that there was substandard or constitutionally deficient performance by his or her counsel;  meaning effectively that counsel's performance was not that of a reasonably competent defense attorney under the circumstances and the petitioner also needs to prove that he was somehow prejudiced.   In other words that there was some reasonable probability, that but for counsel's errors, there would have been a different outcome in the proceeding.

Again, as to the first prong, counsel's performance here, the court finds no deficiency in Attorney Channing's performance.

And we must remember the prong of counsel's performance is not to be viewed through the glasses of hindsight being twenty-twenty after the chosen defense theory has obviously been proven not successful and then to go back and say, well, counsel could have or should have done something else because obviously what he or she chose was not successful.

The idea is under the circumstances and at the time with the things counsel had before him, what was reasonable and what was not.

Here, again, counsel looked at the case, there was a theory, a child made a sexual assault allegation and there are several theories:  It is untrue the child made it up.   It is untrue the child's parent assisted them in making it up.

Counsel testified he considered the alternatives and because of the fact that there were—at least one clear instance, and maybe more, where once the mother had been advised by the child of these allegations, the mother actually made an effort to halt the child and to have her consider whether or not she really wanted to go forward with this, counsel's choice to not attack that or not to try to raise that as a defense theory is more than reasonable.

Counsel chose really the theory that was left, was that—which was that he needed to try to attack solely the credibility of the child.

I mean, I give petitioner's counsel much leeway, he's a zealous advocate, but with all due respect the testimony of these experts was not merely a polarizing as is claimed.   Every single one of the experts that testified here really basically said, yeah, you could consider that as a theory, or, yeah, that information could mean something else.   It depends on the circumstance.

So, none of the experts here were overly definitive that anything here absolutely meant one thing or another.   Most of them, in fact, would answer one question one way on direct examination and then on cross-examination would admit, yes, if I viewed the child dancing after the interview;  yes, that could mean lots of different things I could explore, maybe it should be explored, but nobody here said definitively that any of that means anything in particular.

Could defense counsel have taken an attack, the credibility of Dr. Donahue, attack the credibility of Dr. Horowitz.   Sure. But again, that is not the theory or that's not the standard.

The standard of defense counsel's performance is whether or not under all the circumstances, and in this case counsel indicated he made a tactical considered decision not to cross-examine Dr. Horowitz.

There was a huge presumption that the petitioner needs to overcome, when counsel indicates that he or she gave consideration to a defense option, he had dealt with Dr. Horowitz before, and in this case the court feels, again, he made a tactical decision that he wasn't going to get into a fight with an expert, when that expert didn't:

1) He wasn't a fact witness.   He had not interviewed this particular child or examined her.   He was merely testifying to theory and it really didn't affect his theory of the case.

Again, as to the substance of the investigation and whether the investigation was complete or not, again, agreeable;  counsel, every defense counsel could have asked additional questions, could have tested the substance of an investigation or—and in this case admittedly the court reviewed the transcript, counsel could have.   It's not whether he could have in a hypothetical sense;  it's whether it was unreasonable as a defense tactic or unreasonable in his contact as—in his conduct as defense attorney not to focus on those things.

And again, here the court doesn't find that his failure to get into all of the gritty details with Dr. Donahue, again, could it have been helpful.

The court is not denying that.   The question is whether it was unreasonable.

Here, counsel testified and reviewing the transcripts and the testimony and the cross-examination of his arguments, his focus was on undermining the credibility of the child.

Reviewing the testimony, counsel appears to have done a pretty good job submitting letters, documents.   He attempted to get in that writing that she had—that indicated she had been sexed up by somebody, which was not allowed.   Counsel did a good job as a defense attorney in undermining the credibility, getting the victim to admit to things that she claimed originally on cross-examination didn't happen;  like she denied called the petitioner daddy.   He had a letter for—denied knowing where he was.   He had a letter to undermine that.

So, counsel did a good job in even showing that there were inconsistencies in some of the things she claimed and when and how they happened.

So, really the claim here is—and now counsel denies it, but really the claim here has been defense counsel should have rested his theory of defense somewhere else other than focusing specifically on the child and trying to undermine her credibility.

And I agree with the respondent.   I mean reading through the transcript, listening to defense counsel testify, this hypothetical theory of the mother coaching the child and being involved in assisting the child and making the story up, just wasn't there.   It wasn't there in a way that it would have been reasonable for defense counsel to get into that fight, only for the state to then be able to present evidence and make defense counsel look like he was just doing the scattered shock theory of defense of the mother on more than one occasion trying to force the child to really consider whether or not she wanted to come forward with these allegations.

Again, defense counsel has great leeway in choosing a theory of defense.   And again, it is not determined by whether or not there are other theories that defense counsel could have used.   It's whether or not it was unreasonable for defense counsel under the circumstances to choose one theory and reject others and in this case it wasn't.

He went—frankly again, and I've said this several times, with the one really available theory of defense which was to attack directly the credibility of the child, which the court believes in reviewing the evidence, defense counsel did an adequate job.

Because the jury believed the child, even though there were clearly inconsistencies in her claims, in her statements, in her testimony, that's for the trier of fact.   And again, that's—does not necessarily undermine defense counsel's conduct or what he did.

And so as the parties know the court only needs to find one of the two—or find that the petitioner has failed to prove one of the two theories of defense here—I mean—I'm sorry—one of the two prongs of Strickland versus Washington, and if the petitioner fails to prove either one, it is fatal to his claim.

So again, the court has found that Attorney Channing's performance in this matter was not deficient.

And again, in reading through the evidence, reading through the transcripts, the court also finds—I mean really this case came down to whether or not the victim was to be believed or not and the jury believed the victim.

All of these other things about whether or not the investigation was presented, and the court listened to all the testimony here, and could have presented the jury with a lot of things, but ultimately it came down to whether or not this young woman could get on the stand and survive the rigors of cross-examination, and in this case according to the jury's verdict, she did.

And so the court finds that after reading through all that and listening to all of the additional testimony hereto, it is unlikely the court doesn't find that there's reasonable probability that even if this other additional information had been presented about the allegations that the investigations were faulty, that the jury would have rendered a different verdict, and, in fact, the court will note specifically that all of the experts even testified that the “protocols” were in flux.   There really was no defined role of the forensic investigator.   There really was no defined role.

Ms. Donahue testified that she thought it was just—according to their makeup of their team, her job was simply to conduct the investigation or the interview with the child and that it was other party's jobs to go out and look into and investigate whether or not there were alternative explanations.   If there were and if that information came to her, she said it would have been addressed, but her job was simply to just address the child, to see what came up, if she was led in a different direction by the child, she would have followed it, but it didn't come up.

Other doctors, Dr. Horowitz seemed to testify maybe there's more of an affirmative duty and Dr. Mantell sort of—again, testified I think even more of an obligation to engage in that.   So, even the three experts differed somewhat on what this obligation was of the forensic investigator.   And what the court is left with is it really comes down to the makeup of a particular team and all of them agreed it ultimately comes down to what information the forensic interviewer is presented with when he or she commences the interview as to which direction that interview starts, and then when the child begins to talk, they are then guided by where the child goes to some extent on how far they can go.

But again, listening to all of them and comparing that to the evidence and what was presented at trial, the court does not believe or does not find that there is a reasonable probability that there would have been a different verdict because essentially it looks like it really came down to whether or not they believed, even with the inconsistencies and the inability to remember and at times remembering events happened before they happened or after they happened, the jury believed ultimately that the victim was telling the truth.   So, either because there is no prejudice or because there has been a failure to show deficient performance, the court denies the petition.

The record will reflect that the petitioner is going to be presented with a copy of his notice of rights to appeal.

The court will order that if there is going to be an appeal, counsel will prepare a judgment file and submit that to the clerk within thirty days.

I will order a copy of all of my comments and that will stand as the court's Memorandum of Decision.

Anything additional for the record from either side before court concludes?

ATTY. KIRSCHBAUM:  No, Your Honor.

ATTY. LENCZEWSKI:  No, Your Honor.   Thank you.

THE COURT:  Thank you counsel for your time as always and we'll stand adjourned until 10 a.m. tomorrow morning.

THE COURT:  Just for the record, back on the record in the matter of Mickey Minor versus Warden.

It came up just before we started this afternoon maybe on the record that in—in the trial exhibits that were sent here, there is an unredacted copy of the forensic examination that was submitted as an exhibit at trial.   What this court's going to do is even though it's a criminal trial exhibit and wasn't admitted here, this court's going to order that that exhibit be sealed within the criminal exhibits and that there just be a—because of the new statutes on not releasing personal identifying information on victims and that—that document remains sealed until further—or unless there's additional court orders or requests that it be unsealed because it contains again personal identifying information, including I believe the full name of the victim and her parent.

All right.   So, that will be ordered sealed and it will remain with the criminal exhibits, but it should be sealed until further order of a court.

Thank you.

All right.   Now, we stand adjourned.

(End of excerpt as ordered.)

(The hearing concluded and court adjourned.)

Newson, J.

Newson, John M., J.